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FAILURE TO STRICTLY COMPLY WITH CONDITION-PRECEDENT NOTICE PROVISIONS IN THE CONSTRUCTION CONTRACT PRECLUDED RECOVERY FOR DELAY DAMAGES.

The Second Department, reversing Supreme Court, determined plaintiff was not entitled to [construction] delay damages because plaintiff did not strictly comply with the delay-notice requirements spelled out in the contract as a condition precedent:

“Where a construction contract contains a condition precedent-type notice provision setting forth the consequences of a failure to strictly comply,' strict compliance will be required”… . Express conditions precedent “must be literally performed; substantial performance will not suffice,” and “[f]ailure to strictly comply with such provisions generally constitutes a waiver of a claim” … .

Here, article 11 of the primary contract between the defendant and the City, which is incorporated into the subcontract, contains such a condition-precedent type notice provision. Article 11.1.2 requires a contractor claiming to be sustaining delay damages to submit, “within forty-five (45) Days from the time such damages are first incurred, and every thirty (30) Days thereafter for as long as such damages are incurred, verified statements of the details and amounts of such damages, together with documentary evidence of such damages.” Moreover, pursuant to article 11.2, a failure “to strictly comply with the requirements of Article . . . 11.1.2 shall be deemed a conclusive waiver by the Contractor of any and all claims for damages for delay arising from such condition.”

The letters and emails relied upon by the Supreme Court and the plaintiff did not strictly comply with the contractual notice requirement, since they did not contain verified statements of the amount of delay damages allegedly sustained by the plaintiff and were unsupported by documentary evidence … . Schindler El. Corp. v Tully Constr. Co., Inc., 2016 NY Slip Op 03868, 2nd Dept 5-18-16

CONTRACT LAW (FAILURE TO STRICTLY COMPLY WITH CONDITION-PRECEDENT NOTICE PROVISIONS IN THE CONSTRUCTION CONTRACT PRECLUDED RECOVERY FOR DELAY DAMAGES)/LABOR-CONSTRUCTION LAW (FAILURE TO STRICTLY COMPLY WITH CONDITION-PRECEDENT NOTICE PROVISIONS IN THE CONSTRUCTION CONTRACT PRECLUDED RECOVERY FOR DELAY DAMAGES)/CONSTRUCTION CONTRACTS (DELAY DAMAGES, FAILURE TO STRICTLY COMPLY WITH CONDITION-PRECEDENT NOTICE PROVISIONS IN THE CONSTRUCTION CONTRACT PRECLUDED RECOVERY FOR DELAY DAMAGES)/DELAY DAMAGES (CONSTRUCTION CONTRACTS, FAILURE TO STRICTLY COMPLY WITH CONDITION-PRECEDENT NOTICE PROVISIONS IN THE CONSTRUCTION CONTRACT PRECLUDED RECOVERY FOR DELAY DAMAGES)/CONDITIONS PRECEDENT (CONSTRUCTION CONTRACTS, FAILURE TO STRICTLY COMPLY WITH CONDITION-PRECEDENT NOTICE PROVISIONS IN THE CONSTRUCTION CONTRACT PRECLUDED RECOVERY FOR DELAY DAMAGES)

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QUESTION OF FACT WHETHER ABUTTING PROPERTY OWNER VIOLATED THE NYC ADMINISTRATIVE CODE AND THEREBY OWED A DUTY TO PLAINTIFF WHO ALLEGEDLY FELL OVER A CABLE ON THE SIDEWALK.

The Second Department determined defendant abutting property owner did not demonstrate he owed no duty to the trip and fall plaintiff who allegedly fell over a piece of rebar which was on the sidewalk. The court explained the duty of abutting property owners under the New York City code:

…[L]ability may be imposed on the abutting landowner when the abutting landowner … violated a statute or ordinance imposing liability on the abutting landowner for failing to maintain the sidewalk … .

“Administrative Code of the City of New York § 7-210, which became effective September 14, 2003, shifted tort liability for injuries arising from a defective sidewalk from the City of New York to the abutting property owner” … . …

Administrative Code section 7-210(a) states that “[i]t shall be the duty of the owner of the real property abutting any sidewalk . . . to maintain such sidewalk in an reasonably safe condition.” Administrative Code section 7-210(b) states that “[f]ailure to maintain such sidewalk in a reasonably safe condition shall include, but not be limited to . . . the negligent failure to remove snow, ice, dirt or other material from the sidewalk” … . Metzker v City of New York, 2016 NY Slip Op 03724, 2nd Dept 5-11-16

NEGLIGENCE (QUESTION OF FACT WHETHER ABUTTING PROPERTY OWNER VIOLATED THE NYC ADMINISTRATIVE CODE AND THEREBY OWED A DUTY TO PLAINTIFF WHO ALLEGEDLY FELL OVER A CABLE ON THE SIDEWALK)/MUNICIPAL LAW (NEW YORK CITY ADMINISTRATIVE CODE, QUESTION OF FACT WHETHER ABUTTING PROPERTY OWNER VIOLATED THE NYC ADMINISTRATIVE CODE AND THEREBY OWED A DUTY TO PLAINTIFF WHO ALLEGEDLY FELL OVER A CABLE ON THE SIDEWALK)/SLIP AND FALL (QUESTION OF FACT WHETHER ABUTTING PROPERTY OWNER VIOLATED THE NYC ADMINISTRATIVE CODE AND THEREBY OWED A DUTY TO PLAINTIFF WHO ALLEGEDLY FELL OVER A CABLE ON THE SIDEWALK)

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QUESTION OF FACT WHETHER GENERAL RELEASE PROCURED BY FRAUD OR IN UNFAIR CIRCUMSTANCES.

The Second Department determined questions of fact whether a general release from liability was procured by fraud precluded summary judgment in favor of the defendant in this Labor Law (fall from scaffold) action:

“A release is a contract, and its construction is governed by contract law” … . In general, “a valid release constitutes a complete bar to an action on a claim which is the subject of the release” … . “A release may be invalidated, however, for any of the traditional bases for setting aside written agreements, namely, duress, illegality, fraud, or mutual mistake'” … . Moreover, there is a requirement that a release covering both known and unknown injuries be ” fairly and knowingly made'” … .

“A party may move for judgment dismissing one or more causes of action asserted against him [or her] on the ground that . . . the cause of action may not be maintained because of . . . [a] release” (CPLR 3211[a][5]). However, a motion pursuant to CPLR 3211(a)(5) to dismiss a complaint on the basis of a release “should be denied where fraud or duress in the procurement of the release is alleged” … .

Here, in support of their motion to dismiss the complaint, the defendants submitted a general release executed by the plaintiff, which, by its terms, barred the instant action against them … . However, the plaintiff’s allegations were nevertheless sufficient to support a possible finding that the defendants procured the release by means of fraud and that the release was signed by the plaintiff ” under circumstances which indicate unfairness'” … . Pacheco v 32-42 55th St. Realty, LLC, 2016 NY Slip Op 03727, 2nd Dept 5-11-16

LABOR LAW-CONSTRUCTION LAW (QUESTION OF FACT WHETHER GENERAL RELEASED PROCURED BY FRAUD OR IN UNFAIR CIRCUMSTANCES)/CONTRACT LAW (GENERAL RELEASE, QUESTION OF FACT WHETHER GENERAL RELEASED PROCURED BY FRAUD OR IN UNFAIR CIRCUMSTANCES)/RELEASES (GENERAL RELEASE, QUESTION OF FACT WHETHER GENERAL RELEASED PROCURED BY FRAUD OR IN UNFAIR CIRCUMSTANCES)/FRAUD (GENERAL RELEASE, QUESTION OF FACT WHETHER GENERAL RELEASED PROCURED BY FRAUD OR IN UNFAIR CIRCUMSTANCES)

CLAIMANTS DID NOT DEMONSTRATE THE FEASIBILITY OF USE OF THE CONDEMNED LAND FOR HIGH-RISE RESIDENTIAL AS THE HIGHEST AND BEST USE.

The Second Department determined claimants did not demonstrate it was feasible the highest and best use of condemned waterfront property would be high-rise residential. The court explained the law:

The bedrock of eminent domain law is the principle that, when private property is taken for public use, the condemning authority must “compensate the owner so that he may be put in the same relative position, insofar as this is possible, as if the taking had not occurred” … . “The measure of damages must reflect the fair market value of the property in its highest and best use on the date of the taking, regardless of whether the property is being put to such use at the time” … . Moreover, “[i]t is necessary to show that there is a reasonable possibility that the property's highest and best asserted use could or would have been made within the reasonably near future, and a use which is no more than a speculative or hypothetical arrangement may not be accepted as the basis for an award”… .

” [A] condemnee may not receive an enhanced value for its property where the enhancement is due to the property's inclusion within a redevelopment plan'” … . Thus, for example, property zoned for industrial use ” should be valued in accordance with the industrial zoning designation which would apply if the redevelopment plan did not exist,' for [a] condemnee is only entitled to compensation for what it has lost, not for what the condemnor has gained'” … . Matter of Queens W. Dev. Corp. v Nixbot Realty Assoc., 2016 NY Slip Op 03746, 2nd Dept 5-11-16

EMINENT DOMAIN (CLAIMANTS DID NOT DEMONSTRATE THE FEASIBILITY OF USE OF THE CONDEMNED LAND FOR HIGH-RISE RESIDENTIAL AS THE HIGHEST AND BEST USE)/HIGHEST AND BEST USE (EMINENT DOMAIN, CLAIMANTS DID NOT DEMONSTRATE THE FEASIBILITY OF USE OF THE CONDEMNED LAND FOR HIGH-RISE RESIDENTIAL AS THE HIGHEST AND BEST USE)

FAILURE TO PROVIDE RACE-NEUTRAL REASON FOR CHALLENGE TO BLACK JUROR REQUIRED REVERSAL.

The Second Department determined the prosecutor's failure to provide an adequate race-neutral reason for a peremptory challenge to a black juror required reversal:

Here, during jury selection, the defendant made an application before the trial court pursuant to Batson, arguing that the prosecution was exercising its peremptory challenges in a discriminatory manner against prospective black jurors. The prosecutor proffered an explanation for challenging one of the two jurors at issue, stating that it was “just our instincts that we don't feel [prospective juror] number 4 would be a suitable juror for this particular trial.” This explanation was inadequate … . Under the circumstances, the fact that the prosecution, essentially, “offered no reason at all with respect to [its] challenge of the juror is dispositive of the Batson issue” … . People v Jones, 2016 NY Slip Op 03758, 2nd Dept 5-11-16

CRIMINAL LAW (FAILURE TO PROVIDE RACE-NEUTRAL REASON FOR CHALLENGE TO BLACK JUROR REQUIRED REVERSAL)/JURORS (CRIMINAL LAW, FAILURE TO PROVIDE RACE-NEUTRAL REASON FOR CHALLENGE TO BLACK JUROR REQUIRED REVERSAL)/BATSON CHALLENGE (CRIMINAL LAW, FAILURE TO PROVIDE RACE-NEUTRAL REASON FOR CHALLENGE TO BLACK JUROR REQUIRED REVERSAL)

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EVIDENCE SUBMITTED IN SUPPORT OF MOTION TO DISMISS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WITHIN THE MEANING OF CPLR 3211(a)(1).

The Second Department determined the evidence submitted by defendant law firm in support of a motion to dismiss the malpractice complaint based on documentary evidence was properly denied. The letters and affirmation did not constitute “documentary evidence” and did not utterly refute plaintiff's allegations:

“The evidence submitted in support of a [CPLR 3211(a)(1)] motion must be documentary' or the motion must be denied” … . To qualify as documentary evidence, the evidence “must be unambiguous and of undisputed authenticity” … . “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable,' would qualify as documentary evidence' in the proper case” … . Affidavits and letters “were not the types of documents contemplated by the Legislature when it enacted this provision”… .

Here, the letters … did not constitute documentary evidence for the purpose of a motion pursuant to CPLR 3211(a)(1)… ,  Similarly, the affirmation of one of [the law firm's] members was not documentary evidence for the purpose of this motion … . Anderson v Armentano, 2016 NY Slip Op 03690, 2nd Dept 5-11-16

CIVIL PROCEDURE (EVIDENCE SUBMITTED IN SUPPORT OF MOTION TO DISMISS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WITHIN THE MEANING OF CPLR 3211(a)(1))/EVIDENCE (CIVIL MOTION TO DISMISS, EVIDENCE SUBMITTED IN SUPPORT OF MOTION TO DISMISS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WITHIN THE MEANING OF CPLR 3211(a)(1))/DOCUMENTARY EVIDENCE (CIVIL MOTION TO DISMISS, EVIDENCE SUBMITTED IN SUPPORT OF MOTION TO DISMISS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WITHIN THE MEANING OF CPLR 3211(a)(1))/DISMISS, MOTION TO (CIVIL MOTION TO DISMISS, EVIDENCE SUBMITTED IN SUPPORT OF MOTION TO DISMISS DID NOT CONSTITUTE DOCUMENTARY EVIDENCE WITHIN THE MEANING OF CPLR 3211(a)(1)

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VILLAGE FAILED TO ESTABLISH PRIMA FACIE ENTITLEMENT TO SUMMARY JUDGMENT WHERE INJURY CAUSED BY TREE FALLING IN ROADWAY.

The Second Department determined the defendant village's motion papers did not demonstrate entitlement to summary judgment dismissing the complaint alleging injury to plaintiff-driver caused by a tree falling in the roadway:

A municipality has a duty to maintain its roadways in a reasonably safe condition, and this duty extends to trees adjacent to the road which could pose a danger to travelers … . However, a municipality will not be held liable unless it had actual or constructive notice of the dangerous condition … . Here, the Village failed to establish its prima facie entitlement to judgment as a matter of law … by demonstrating that it owed no duty to maintain or inspect the tree which fell in the roadway on the date of the subject accident or that it lacked actual or constructive notice of the alleged dangerous condition of the tree … . Furthermore, the Village failed to establish its prima facie entitlement to judgment as a matter of law by demonstrating that the breach of any duty allegedly owed by it was not a proximate cause of the subject accident. Since the Village failed to establish its prima facie entitlement to judgment as a matter of law, we need not review the sufficiency of the opposition papers … . Connolly v Incorporated Vil. of Lloyd Harbor, 2016 NY Slip Op 03463, 2nd Dept, 5-4-16

NEGLIGENCE (VILLAGE FAILED TO ESTABLISH PRIMA FACIE ENTITLEMENT TO SUMMARY JUDGMENT WHERE INJURY CAUSED BY TREE FALLING IN ROADWAY)/MUNICIPAL LAW (VILLAGE FAILED TO ESTABLISH PRIMA FACIE ENTITLEMENT TO SUMMARY JUDGMENT WHERE INJURY CAUSED BY TREE FALLING IN ROADWAY)

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PLAINTIFF ASSUMED THE RISK OF STEPPING IN A HOLE ON THE PLAYING FIELD.

The Second Department, reversing Supreme Court, determined infant plaintiff assumed the risk of stepping in a hole in a playing field on school grounds. The plaintiff was injured during a pick-up football game which was not organized by the defendant:

Under the doctrine of primary assumption of risk, a voluntary participant in a sporting activity “is deemed to have consented to apparent or reasonably foreseeable consequences of engaging in the sport; the landowner need protect the plaintiff only from unassumed, concealed, or unreasonably increased risks, thus to make conditions as safe as they appear to be” … .

Here, the hole was open, obvious, clearly visible, and known to the plaintiff … . Moreover, the plaintiff and his friends understood the risk presented by the hole and set the boundaries of the playing field in order to avoid it. Since the plaintiff voluntarily chose to play on a field on which there was a faulty condition that was open and obvious, he assumed the risk of injury from stepping into the hole … . Tinto v Yonkers Bd. of Educ., 2016 NY Slip Op 03496, 2nd Dept 5-4-16

NEGLIGENCE (PLAINTIFF ASSUMED THE RISK OF STEPPING IN A HOLE ON THE PLAYING FIELD)/EDUCATION-SCHOOL LAW (PLAINTIFF ASSUMED THE RISK OF STEPPING IN A HOLE ON THE PLAYING FIELD)/ASSUMPTION OF RISK (PLAINTIFF ASSUMED THE RISK OF STEPPING IN A HOLE ON THE PLAYING FIELD)

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DEFENDANT, WHICH INSTALLED CHRISTMAS DISPLAYS AT A MALL, DID NOT OWE A DUTY TO PLAINTIFF STEMMING FROM ITS CONTRACT WITH THE MALL; SINCE PLAINTIFF ALLEGED ONLY ONE ESPINAL EXCEPTION TO SUPPORT LIABILITY STEMMING FROM THE CONTRACT, DEFENDANT NEED ONLY ADDRESS THAT ONE EXCEPTION IN ITS MOTION FOR SUMMARY JUDGMENT.

The Second Department, reversing Supreme Court, determined defendant American Christmas did not owe a duty to plaintiff in this trip and fall case. American Christmas contracted with a shopping mall to install Christmas displays. After the installation contract was completed, plaintiff allegedly tripped over electrical wires taped to the floor. There was evidence American Christmas put up stanchions to prevent people from crossing over the cords. Plaintiff alleged American Christmas was liable in tort arising from the contract with the mall because it launched an instrument of harm. The court noted that because plaintiff only alleged one of the three possible criteria for liability to third persons arising from a contract, the defendant was only required to address that single theory in its motion for summary judgment:

Here, American Christmas demonstrated its prima facie entitlement to judgment as a matter of law by offering proof that the plaintiff was not a party to its holiday display contracts with the Mall Owner, and that it thus owed no duty of care to the plaintiff. American Christmas also established, prima facie, that the one Espinal exception alleged by the plaintiff that would give rise to a duty of care does not apply in this case (see Espinal v Melville Snow Contrs., 98 NY2d at 141-142). …

Inasmuch as the plaintiff did not allege facts that would establish the possible applicability of the second or third [Espinal] exception, American Christmas was not required to affirmatively demonstrate that these exceptions did not apply in order to establish its prima facie entitlement to judgment as a matter of law … . Parrinello v Walt Whitman Mall, LLC, 2016 NY Slip Op 03481, 2nd Dept 3-4-16

NEGLIGENCE (DEFENDANT, WHICH INSTALLED CHRISTMAS DISPLAYS AT A MALL, DID NOT OWE A DUTY TO PLAINTIFF STEMMING FROM ITS CONTRACT WITH MALL; SINCE PLAINTIFF ALLEGED ONLY ONE ESPINAL EXCEPTION TO SUPPORT LIABILITY STEMMING FROM THE CONTRACT, DEFENDANT NEED ONLY ADDRESS THAT ONE EXCEPTION IN ITS MOTION FOR SUMMARY JUDGMENT)/CONTRACT LAW (DEFENDANT, WHICH INSTALLED CHRISTMAS DISPLAYS AT A MALL, DID NOT OWE A DUTY TO PLAINTIFF STEMMING FROM ITS CONTRACT WITH MALL; SINCE PLAINTIFF ALLEGED ONLY ONE ESPINAL EXCEPTION TO SUPPORT LIABILITY STEMMING FROM THE CONTRACT, DEFENDANT NEED ONLY ADDRESS THAT ONE EXCEPTION IN ITS MOTION FOR SUMMARY JUDGMENT)/CIVIL PROCEDURE (DEFENDANT, WHICH INSTALLED CHRISTMAS DISPLAYS AT A MALL, DID NOT OWE A DUTY TO PLAINTIFF STEMMING FROM ITS CONTRACT WITH MALL; SINCE PLAINTIFF ALLEGED ONLY ONE ESPINAL EXCEPTION TO SUPPORT LIABILITY STEMMING FROM THE CONTRACT, DEFENDANT NEED ONLY ADDRESS THAT ONE EXCEPTION IN ITS MOTION FOR SUMMARY JUDGMENT)/ESPINAL EXCEPTIONS (DEFENDANT, WHICH INSTALLED CHRISTMAS DISPLAYS AT A MALL, DID NOT OWE A DUTY TO PLAINTIFF STEMMING FROM ITS CONTRACT WITH MALL; SINCE PLAINTIFF ALLEGED ONLY ONE ESPINAL EXCEPTION TO SUPPORT LIABILITY STEMMING FROM THE CONTRACT, DEFENDANT NEED ONLY ADDRESS THAT ONE EXCEPTION IN ITS MOTION FOR SUMMARY JUDGMENT)

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TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983.

The Second Department, reversing Supreme Court, determined defendant members of a town board were absolutely immune from a lawsuit stemming from their legislative activities:

… [T]he defendants are entitled to dismissal of the complaint insofar as asserted against the defendants who are members of the Town Board … based on the principle of absolute immunity. Local legislators are “absolutely immune from suit under [42 U.S.C.] § 1983 for their legislative activities” … , and such immunity is applicable to all actions within the “sphere of legitimate legislative activity” … . The allegations asserted in the complaint against the Town Board defendants are based on actions that were legislative and within the sphere of legislative activity. Therefore, the Town Board defendants are entitled to absolute immunity … .

The defendants are also entitled to dismissal of the complaint insofar as asserted against the defendant Robert W. Fitzsimmons, an official with the Town … building department. The complaint does not allege that Fitzsimmons undertook any actions that violated “clearly established constitutional rights of which a reasonable person would have been aware” … . Therefore, the defendants are entitled to dismissal of the complaint insofar as asserted against Fitzsimmons, based on the principle of qualified immunity … . 24 Franklin Ave. R.E. Corp. v Cannella, 2016 NY Slip Op 03499, 2nd Dept 5-4-16

MUNICIPAL LAW (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)/IMMUNITY (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)/ABSOLUTE IMMUNITY (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)/QUALIFIED IMMUNITY (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)/42 USC 1983 (TOWN BOARD MEMBERS AND TOWN OFFICIAL IMMUNE FROM SUIT UNDER 42 USC 1983)

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